Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

An article in today’s Wall Street Journal titled “Police Tool Targets Guns” says that the NYPD has taken delivery of a “T-Ray” scanner: a device that can detect weapons concealed under heavy clothing. The device “detects terahertz radiation, a high-frequency electromagnetic natural energy that is emitted by people and can penetrate many materials, including clothing.” The scanner “sees” the shape and size of the weapon against the body of the person carrying it, because the material of which any gun is made does not emit terahertz radiation like the human body.

NYPD Commissioner Ray Kelly said the police were very “hopeful” about the potential of the device. While the current version of the tool is “about the size of an old-style projection television,” the NYPD would like to see the technology reduced in size so that it is “small enough to carry on an officer’s gun belt.” Privacy advocates raised some concerns, but also expressed hope that the device could make the NYPD’s controversial stop and frisk program unnecessary — or at least less intrusive.

All very interesting — but to me, this isn’t new. In 1996, I published an article called “Superman’s X-Ray Vision and the Fourth Amendment: The New Gun Detection Technology” in the Temple Law Review. (The official citation is 69 Temple L. Rev. 1.) The article highlighted a nascent technology: a device that could scan people for millimeter wave radiation, emitted by all human bodies. The device used the radiation to produce images of weapons hidden under heavy clothing. The article explained the technology, described how police could use it , and explored the ways that the device would fit into the Fourth Amendment and other aspects of the law. Here’s a small slice:

[R]esearch and development efforts have begun that would give police officers something very much like Superman’s x-ray vision. Two private companies and one government laboratory, each with its own design, have started work on technology that will allow police officers to “see” through clothing to detect whether a person is carrying a concealed weapon. The idea is to produce a commercially and technologically viable device that could do an “electronic frisk” of a suspect from a distance of ten or twenty feet.

So, here we are — back to the future. The millimeter radiation technology never achieved what researchers hoped for in terms of portability — they could never make it small enough to be handheld — or in terms of use at a a distance. Perhaps the terahertz technology will do better in both respects. Assuming it does, the terahertz devices will face many of the same Fourth Amendment, legal, and privacy issues that I pointed out almost twenty years ago.

A few weeks ago, I wrote a post here about two cases heard by the U.S. Supreme Court about police use of drug-sniffing dogs: Florida v. Jardines and Florida v. Harris. But now comes news that technology may take us a step further than those cases would. It seems that scientists have built a device that mimics the power and accuracy of the canine nose.

Professors Carl Meinhart and Martin Moskovits at the University of California at Santa Barbara have engineered a device that uses a computer chip to imitate the extreme sensitivity of the cells in dogs’ noses using “microfluidic nanotechnology.” According to Dr. Brian Piorek, whose company, SpectraFluidics, has patented and exclusively licensed the technology, “Our patented nanoscale vapor detection platform has enabled us to create a … chip that biomimics a dog’s keen sense of smell.” The bottom line is that this device is highly sensitive to vapor molecules that are an important part of TNT. The full story is here. And here is the an abstract for a study the scientists published on the technology in the journal Analytical Chemistry. According to another story on the technology, there is no apparent reason that the device could not be built to detect almost any other type of vapor molecule, including of course vapor molecules from narcotics. According to Professor Moskovits, “The paper we published focused on explosives, but it doesn’t have to be explosives.”

Here’s the thing: this was all foretold, a generation ago, and the law may not be fully prepared for it. The U.S. Supreme Court made its first decision about drug detection dogs in 1983 in the case of U.S. v. Place. In that case, in which a trained dog was used to detect narcotics in a suitcase, the Court said that dogs were uniquely unintrusive, since they could search the inside of a concealed space (like a suitcase) without the police having to open it. The dog would then give limited, binary information to the police officer: using a signal the dog was trained to give, the dog would “say” that drugs (or explosives, or whatever) either were, or were not, present. Dogs were also, the Court said, almost unfailingly accurate. Therefore, the Court said that a trained dog could be used on an object like a suitcase without a warrant, without probable cause — indeed without any evidence at all. It was a far-reaching and very open-ended decision, though few saw it that way at the time.

But in a case the next year called U.S. v. Jacobsen, a dissenting opinion by Justices Brennan and Marshall recognized the full implications of the dog-sniffs-are-so-good-they-aren’t-searches idea.

…[T]he Court’s analysis is so unbounded that if a device were developed that could detect, from the outside of a building, the presence of cocaine inside, there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present.

Well, it seems that the future is here. If the Court uses its two dog sniff cases this year to give police the power to walk up to the door of a home with a drug-sniffing dog — and they might do this very thing in Florida v. Jardines — think of how easy it may be for every police department to equip all of its police officers with canine noses, to use whenever they want. And, unless the Court curtails existing police power over the use of drug-sniffing dogs, the Constitution will have nothing to say about regulating the use of these devices.

From The Crime Report, I learned that the International Association of Chiefs of Police (IACP) gathered 70 experts from various disciplines to discuss wrongful convictions at a summit meeting last week in Alexandria, Virginia. In his August 22 story, Ted Gest tells us “wrongful convictions worry cops,” and that the IACP called the summit to address the problem.

Given the subtitle of my book Failed Evidence — “Why Law Enforcement Resists Science” — the IACP’s interest in addressing issues that lead to wrongful convictions could be the beginning of very important changes in police attitudes and practices. What’s behind it?

According to Walter McNeil, IACP’s President and Chief of Police of Quincy, Florida, said that police must pay attention to wrongful convictions, even if they are small in number because the damage they do to everyone involved is “irreversible.” In an article in the IACP’s Police Chief magazine, Chief McNeil continued:

The damage goes beyond the wrongfully convicted citizen; it hurts all those involved in the case, including law enforcement and prosecutorial staff, families of the wrongfully accused, the victim of the original crime in question, and the public at large when justice is not carried out and the true guilty individual is not arrested and punished.

To this end, the summit featured working groups on “Making Rightful Arrests,” “Correcting a Wrongful Arrest,” “Technology and Forensic Issues” and “Reexamination of Closed Cases.” This is not a bad list of places to start; if I could have made a list of ten possible topics, these four would have made it.

I did not attend the summit; it was not open to the public. But the IACP says it will use the proceedings at the summit to issue a set of recommendations. So while I can’t offer first-hand reporting on what went on, I find myself encouraged by the fact that the summit took place at all, and I commend the IACP for their interest in these issues.

So: could the IACP, one of the oldest and most established law enforcement professional groups in the world, become the vanguard of a movement in law enforcement to stop resisting science?